I represent several plaintiffs, including a survivor and the estates of decedents, in consolidated lawsuits arising from the same incident. Some clients' accounts of the facts contradict each other and each side's testimony could defeat the other's claim. Is that a conflict?

Plain-English summary

The inquiring attorneys served as co-counsel for several plaintiffs in multiple lawsuits arising from the same incident, consolidated for trial. Their clients included representatives of the estates of several decedents and a survivor of the incident. The representatives had revealed material facts contradicting the survivor's account, and the attorneys stated that the survivor's testimony could defeat the representatives' cause of action, while testimony from the representatives' witnesses could likewise defeat the survivor's cause of action.

The panel applied Rule 1.7(b), which bars representing a client whose representation may be materially limited by the lawyer's responsibilities to another client, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation covering the implications, advantages, and risks of the common representation. It quoted the rule's commentary, which states that an impermissible conflict may exist by reason of a substantial discrepancy in the parties' testimony, incompatible positions relative to an opposing party, or substantially different settlement possibilities among the claims.

The panel concluded that if the positions of the decedents' estate representatives and the survivor are diametrically opposed, a conflict of interest exists under Rule 1.7(b).

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, joint representation of co-plaintiffs in consolidated litigation becomes a Rule 1.7(b) conflict once their accounts of the underlying facts substantially diverge to the point that one side's testimony could defeat another side's claim. The opinion frames the test around the rule's commentary on substantial testimonial discrepancy and incompatible positions, rather than the mere fact of joint representation itself.

Common questions

Q: Is it automatically a conflict to represent multiple plaintiffs in the same consolidated lawsuit?

A: Not automatically. The panel's conclusion turned on the clients' positions being diametrically opposed on the facts, not on joint representation alone.

Q: What specifically made the positions "diametrically opposed" here?

A: The representatives of the decedents' estates had revealed facts contradicting the survivor's account, and the panel noted each side's testimony could defeat the other side's cause of action.

Q: Does the Rule 1.7 commentary give any guidance on what counts as an impermissible conflict among joint clients?

A: Yes. The panel quoted the commentary's list of triggers: a substantial discrepancy in the parties' testimony, incompatible positions relative to an opposing party, or substantially different possibilities of settling the claims.

Background and rules framework

The opinion applies Rule 1.7(b) (Conflict of Interest: General Rule), the Model Rule counterpart of the same number, quoting its bar on representing a client whose representation may be materially limited by the lawyer's responsibilities to another client absent a reasonable belief the representation will not be adversely affected and the client's consent after consultation. It also quotes the rule's commentary on what constitutes an impermissible conflict among jointly represented clients.

Citations and references

Rules of Professional Conduct:

• MR 1.7(b) (Conflict of Interest: General Rule) / RI Rule 1.7(b), including commentary on substantial testimonial discrepancy and incompatible positions

See also

• Alabama State Bar Op. 1982-591: Lawyer's Representation of Co-Plaintiffs in Civil Litigation
• ABA Formal Op. 08-450: Confidentiality When Lawyer Represents Multiple Clients in the Same or Related Matters

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202002-07.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                 Rhode Island Supreme Court Ethics Advisory Panel
                      Opinion No. 2002-07 Request No. 855
                            Issued November 14, 2002

Facts:

    The inquiring attorneys are co-counsel for several plaintiffs in multiple lawsuits

arising out of the same facts. The cases have been consolidated for trial. The attorneys’
clients are representatives of the estates of several decedents and a survivor of the
incident which is the subject of the lawsuits. The inquiring attorneys state that the
representatives of the decedents’ estates have revealed certain material facts that
contradict the survivor’s account of the facts. The attorneys further state that the
testimony of the survivor could defeat the cause of action of the representatives, and that
the testimony of witnesses for the representatives could likewise defeat the cause of
action of the survivor.

Issue Presented:

     The inquiring attorneys ask whether there is a conflict of interest in their

simultaneous representation of the survivor and of the representatives of decedents’
estates.

Opinion:

     There is a conflict of interest pursuant to Rule 1.7(b).

Reasoning:

     Rule 1.7(b) states:

         A lawyer shall not represent a client if the representation of
       that client may be materially limited by the lawyer's
       responsibilities to another client or to a third person, or by the
       lawyer's own interests, unless:

             (1) the lawyer reasonably believes the
             representation will not be adversely affected; and

Final Op. 2002-07
Page 2

           (2)   the client consents after consultation. When
                 representation of multiple clients in a single
                 matter is undertaken, the consultation shall
                 include explanation of the implications of the
                 common representation and the advantages
                 and risks involved.

    The Commentary to Rule 1.7 is instructive. It provides:

                   “An impermissible conflict may exist by
                 reason of substantial discrepancy in the
                 parties’ testimony, incompatibility in positions
                 in relation to an opposing party to the fact that
                 there are substantially different possibilities of
                 settlement of the claims or liabilities in
                 question.”

    The Panel concludes that if the positions of the representatives of the decedents’

estates and the survivor are diametrically opposed, then a conflict of interests exists
pursuant to Rule 1.7(b).